Wednesday, July 29, 2009

Gates and Freedom of Speech

Cross-Posted from Gus Van Horn

Glenn Reynolds points to a lengthy analysis of the Skip Gates affair in Forbes by Harvey A. Silverglate, who considers it from a legal perspective and concludes that the arrest was unconstitutional on First Amendment grounds. I found the article interesting and unsatisfying at the same time, but definitely worth reading.

One of the best points of the article is that it does a good job reminding the reader of how dangerous government "restrictions" on freedom of speech can be, and in a way that anyone following this story can appreciate.

Conceding that the Harvard professor made an ass of himself on the day he was arrested, Silverglate paints a more sympathetic picture of Gates by noting that he has in the past opposed aspects of the various campus speech codes that threaten higher education across the country.

Indeed, Professor Gates, to his enormous credit, has parted ways with the ubiquitous speech police on his own and other campuses. In September 1993, Gates wrote for The New Republic a powerful critique of campus "harassment codes" that outlaw unpleasant speech. Gates was dealing with a typical university speech code, such as the one in force at the time (and still in force on campuses all around the country) at the University of Connecticut, that banned "treating people differently solely because they are in some way different from the majority, … imitating stereotypes in speech or mannerisms, … [or] attributing objections to any of the above actions to 'hypersensitivity' of the targeted individual or group."

Gates labeled this hypersensitivity provision "especially cunning" because "it meant that even if you believed that a complainant was overreacting to an innocuous remark, the attempt to defend yourself in this way could serve only as proof of your guilt." In other words, self-defense against claims of uttering "harassing" speech only furthered the culpability of the accused in the Orwellian world of academic censorship.

Under Gates' own analysis of the University of Connecticut "harassment" speech code, neither Officer Crowley's words to Gates, nor the professor's responses, nor the officer's replies to those responses, should prove the guilt of either. There was no violence. There were only words, some of which might have been insulting and otherwise unpleasant. And in a free society, verbal expression--even if disagreeable--should never lead to clamped handcuffs.

Indeed, during discussion pursuant to Monday's post, it became evident that (aside from this problem), the arrest looked pretty dubious even according to the disorderly conduct law under which -- I, no legal expert, think -- it was made!

First, a charge of disorderly conduct would appear to be valid only (rightly or not) if there was actual concern for a riot breaking out. That was obviously not a concern here.

Behavior that might cause a riot. Massachusetts courts have limited the definition of disorderly conduct to: fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm. (The statute, however, just says "idle and disorderly persons," a formulation that is, on its own, patently unconstitutional.) Violators may be imprisoned for up to six months, fined a maximum of $200, or both.

The stilted language in the Gates police report is intended to mirror the courts' awkward phrasing, but the state could never make the charge stick. The law is aimed not at mere irascibility but rather at unruly behavior likely to set off wider unrest. Accordingly, the behavior must take place in public or on private property where people tend to gather. While the police allege that a crowd had formed outside Gates' property, it is rare to see a disorderly conduct conviction for behavior on the suspect's own front porch. In addition, political speech is excluded from the statute because of the First Amendment. Alleging racial bias, as Gates was doing, and protesting arrest both represent core political speech.

The one objection I still would have had then also seems to have been answered: Crowley is required by law to identify himself, and he needn't be able to be heard to comply. (I do wonder whether this would leave him no way to defend himself if whether he did so came up in a court case and there was only audio evidence.)

Section 98D. Each city or town shall issue to every full time police officer employed by it an identification card bearing his photograph and the municipal seal. Such card shall be carried on the officer's person, and shall be exhibited upon lawful request for purposes of identification.

That said, it is clear to me -- and feel free to correct me if I have made an error here -- that Crowley should not have arrested Gates. They were, to answer my own question, both wrong.

All this said, I remain unsatisfied with the overall analysis. Yes, freedom of speech is protected by the Constitution, and, yes, the mere fact that someone is a government official does not grant him the arbitrary power to punish the rude. But I am concerned that the discussion was not a principled one.

Men living in a society have an inalienable right -- whether a government recognizes it or not -- to freedom of speech. Furthermore, the sole proper purpose of government is to protect that, and all other individual rights we possess. More to the point, our rights are not granted by the government or have any other origin than our nature as rational animals and the context of our living within a society.

Silverglate's analysis seems to suffer at times from a lack of clarity on this point. Below, I consider a couple of examples.

First, while it is true that universities, as government-owned or government-controlled entities, have no business restricting freedom of speech, such government control should be phased out and abolished. First, such control is wrong because it violates property rights. Second, it is impractical since, among many other things, it hamstrings universities from making decisions like, "Do we teach the science of evolution as fact, or will the state force us to teach creationism as science alongside it?"

In other words, Silverglate fails to notice that, although Gates may have been well-intentioned in his opposition to campus speech codes, the problem ultimately arises from the government violating property rights wholesale. This leads it to violate freedom of speech, be it in the name of protecting minorities or in the name of not promoting any ideology during conduct of business legitimate for a private entity, but not for the government.

Second, I thought the following passage also suffered from the same problem.

Today, the law recognizes only four exceptions to the First Amendment's protection for free speech: (1) speech posing the "clear and present danger" of imminent violence or lawless action posited by Holmes, (2) disclosures threatening "national security," (3) "obscenity" and (4) so-called "fighting words" that would provoke a reasonable person to an imminent, violent response. [links dropped]

This may be an accurate legal picture, but how does one make sense of this or determine whether the law adequately protects freedom of speech? (Why do we have these exceptions? Are they all valid? Are they really exceptions?) By way of thinking in terms of principles -- in this case, by noting that we do not have the right to interfere with the exercise of someone else's rights through the initiation of force, the threat thereof, or by helping others do so. (The spoken or written word can do nicely for the last two of these.) Had Silverglate done this, he would have also noticed some more "exceptions."

Take the prohibition against endangering national security. Babbling state secrets can make it impossible for the government to serve in its role as protector of our rights from foreign aggressors. This is why such speech is not legally protected and, more importantly, why we don't have a right to it in the first place.

Considering this principle further, might there be cases where someone's saying something might interfere with the work that the police ought to be doing? This possibility came up as we discussed the case here, and it would appear that the charge of "disorderly conduct" may be an expedient, unprincipled way of addressing this problem which is often used tactically and often abused.

The issue of freedom of speech is certainly important in the Gates affair, but also important is that it exposes a widespread lack of appreciation for the role of government in protecting our individual rights and its underlying cause: a culture-wide failure to appreciate the importance of principles in guiding our thinking, and therefore, our actions.

Barack Obama may soon attack freedom of speech, thanks to the urgings of his friend and advisor, Cass Sunstein. In such a context, I don't know whether to count his and Gates's preoccupation with racial ancestry as a blessing or a curse (i.e., as a distraction or an excuse to them). Whatever the case may be, principles are no luxury to men who would like to remain free.

-- CAV

[Editor's Note: I encourage those interested in commenting to join the discussion at Gus Van Horn.]